Thursday, July 30, 2015

“(t)he president does not have the power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

However, President Obama did something totally different:

Straightaway after entering office, he expanded drone attacks against Afghanistan, Pakistan, Somalia and Yemen. He increased troop strength in Afghanistan after pledging to end war by yearend 2009.

And as Mr. Lendman notes:

America wasn’t attacked, nor other NATO countries. Gaddafi threatened no one, including his own people. The longer war raged, the more popular he became. Libyans rallied around him for safety and security – hoping he’d be able to restore peace and stability.

The result is that Libya is now a failed state. There is no central government, and the resulting power vacuum has allowed ISIS to gain a foothold there which it would not have done otherwise. Gaddafi was a dictator who did not respect human rights. However, the fact that we facilitated regime change there simply sends the wrong message to other countries -- it doesn't matter if you resist the US or comply with their demands -- they will invade and overthrow you anyway if that is their whim.

The Obama Administration has not learned from its own mistakes or the failures of previous administration. Back in 1920, commentators routinely predicted that the fledgling USSR would topple in a matter of several months. However, they ignored the forces at work which held them together. The threat of foreign imperialism allowed their dictators to keep their people in line. The same thing happened with Cuba -- Fidel Castro, for 50+ years, was able to use the threat of a US invasion or a CIA assassination plot to keep his people in line. Even if people do not particularly like a certain leader, they are much more likely to dig their heels in if they believe that foreign powers are trying to tell them what to do. The same thing is happening with Russia today. President Obama, in the belief that he can control events from the White House, has imposed sanctions on Russia along with NATO and the EU in the belief that he can control President Putin's behavior in Ukraine. However, in reality, Putin is now enjoying 85% popularity levels as he is able to rally his nation against the threat of the foreign aggressor. There are routine predictions in the press about Putin's imminent overthrow, which are just as groundless. It is no different than here in the US; if you live in Missouri, you likely wouldn't appreciate it if politicians from Kansas tried to tell you how to do things. And any attempt by the UN to send troops to this country to demand that we respect their version of international law would be done over our dead bodies.

The reason that Communism in Eastern Europe collapsed was because of the will of the people there, along with the moral authority of Pope John Paul II, not because of anything that the Reagan Administration did. The people themselves have to demand a regime change, and they must implement it.

The more we get involved in these foreign entanglements, the more difficult it becomes to build roads and bridges and prepare for the climate change that is already taking place around the world. We have to think of our own well-being first before we go around telling other countries how to govern.

Friday, May 1, 2015

Today, Baltimore State Attorney Marilyn Mosby charged six police officers in connection with the death of Freddie Gray. The fundamental question we have to ask ourselves is, does the law mean something, or is it just a piece of paper? No officer is above the law; otherwise, the end result will be tyranny. In that regard, Ms. Mosby's actions are a welcome first step. Even if Freddie Gray had an extensive police record, he is still entitled to the protection of the law, along with Eric Garner and Mike Brown.

However, we have merely scratched the surface regarding the Constitutionality of our officers' actions. The fact remains that we are continuing to heavily militarize our police officers through the 1033 program in a misguided effort to stop the flow of drugs. While drugs are a serious problem in our society, that does not justify blatantly disregarding the Constitution and blurring the line between our military and our police forces.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

While this appears to apply to private property, it is clear that this amendment, as an expression of our country's moral values, was intended to express the preference for civilian protection of our country over military. Washington warned against maintaining large standing armies in his Farewell Address when he said:

While, then, every part of our country thus feels an immediate and particular interest in union, all the parts combined cannot fail to find in the united mass of means and efforts greater strength, greater resource, proportionably greater security from external danger, a less frequent interruption of their peace by foreign nations; and, what is of inestimable value, they must derive from union an exemption from those broils and wars between themselves, which so frequently afflict neighboring countries not tied together by the same governments, which their own rival ships alone would be sufficient to produce, but which opposite foreign alliances, attachments, and intrigues would stimulate and embitter. Hence, likewise, they will avoid the necessity of those overgrown military establishments which, under any form of government, are inauspicious to liberty, and which are to be regarded as particularly hostile to republican liberty. In this sense it is that your union ought to be considered as a main prop of your liberty, and that the love of the one ought to endear to you the preservation of the other.

While Washington was not a pacifist and he believed in the establishment of national guards and a strong central union, it follows that we should only have the kind of military that is sufficient to protect our country, not for waging war against its own people. So, when we blur the lines between our military and police forces, we only undermine the foundations on which this country was founded. King George III engaged in some of the same tactics that our militarized police forces are engaging in today:

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil power.

The arrest of Freddie Gray was clearly the sort of harassment that was practiced back in the days of King George. Even today, we are not told why Mr. Gray was arrested by the police or what probable cause they had. The fact that overly militarized police forces are being established is a blatant attempt to bypass our states and weaken state sovereignty. And given the culture of impunity that these militarized police units operate under, in which they enjoy privileges and immunities from prosecution, they become independent and superior to local and state powers.

While the Supremacy Clause places the Federal Government over state and local institutions, it is one thing to be in charge. It is quite another to do things just to show who is in charge. This sort of power should only be used as sparingly as possible. To establish a strong union, as Washington and Lincoln did, avoids the problem of lack of national unity in the face of danger, as the Greek city states experienced when they were threatened by Macedonia. However, establishing militarized police forces is simply a power grab under the guise of fighting the "war on drugs." Even if it is popular among the people, fighting the "war on drugs" should never be used as an excuse to bypass the Constitution or upset the balance between federal, state, and local sovereignty.

This is not an attack on all law enforcement officers or law enforcement departments. This is, however, an attack on the notion that our law enforcement should be held to a different standard when it comes to enforcing our laws or that everything they say should be treated as gospel truth. It shouldn't matter who you are or what you do, the law still matters. Being a law enforcement officer is a sacred trust, and when law enforcement officers are allowed to operate with impunity, it undermines the confidence that our people have in our police.

Friday, March 20, 2015

We have had all sorts of suggestions for military options for dealing with ISIS. But the problem with all of them is, we’re only treating the symptoms. One of the root causes for the continuation of this group is the widespread unemployment and disillusionment of youth. The recent bombing in Tunisia has brought this painful fact out into the open; that country is one of the biggest sources of foreign fighters for ISIS. Thus, the recent bombing there was a disaster waiting to happen.

We are not going to make any headway in dealing with the problem of ISIS or any other terrorist organization or the problem of terrorism worldwide until we achieve the goal of universal employment. Give our young people something to live for, and they will be led. Leave them on their own, and they will become disillusioned and radicalized. If we defeat ISIS militarily, but we fail to address the root cause of youth unemployment, then it will only be a matter of time before some other group will spring up and fill its place.

The State Department is seeking to deploy an army of people online to try and dissuade people from joining. That is great, yet people don’t want to hear words and empty promises. People know when they are being sold a bill of goods. The former Washington Post columnist William Raspberry was always curious about education. He did not have all the answers; however, one thing he was adamant on was the need to give people something to point to bigger than themselves. That doesn’t mean we have to revert to daily Bible verses and school prayer; that violates separation of church and state. What it does mean is that we follow Kennedy’s lead when he choose to go to the moon.

These findings have implications for our country. While our economy has improved since the Great Recession, far too many people are still out of work. Specifically, the youth unemployment rate in this country is still 11.9%, over twice the regular unemployment rate. And at least part of the drop in the unemployment rate can be attributed to millions of people dropping out of the workforce because they can’t find work. If we cannot get these figures turned around, then shootings like the Neo-Nazi shooting in Mesa recently will become more common. Finding work for everybody is not just an economic imperative, it is a national security imperative as well.

Thursday, May 16, 2013

Today, we saw in graphic form the moral bankruptcy of standardized testing in this country. The State of Missouri closed Gordon Parks Elementary, a specialized charter school in Kansas City, for repeatedly failing the standardized state tests that the state administers.

Gordon Parks is a charter school that specializes in catering to the needs of students in the direst poverty. We all agree on the need to hold public schools accountable. But the problem with standardized tests is that they cater to a one size fits all approach. It doesn't matter if you are the best and the brightest or if wondering where your next meal will come from is much more important than getting an education. Everybody has to take the test and everybody is judged the same. If you score 100, you are a success. If you score 50, you are a failure. The corporations that devise these tests walk away with a tidy profit.

The problem with these tests is that they dishonor the men and women in uniform who have fought for our freedoms throughout our country's history. Our country was founded on the notion that all people everywhere were entitled to life, liberty, and the pursuit of happiness, an ideal that we fought a civil war over. After we won the Civil War, we no longer believed that Black lives were only worth a fraction of a White life. So why are we now turning around and assigning a value to human life?

The state's rationale is that only 10-20% of the students were passing the state standardized tests, which have to be given to students no matter what. Well, if these students were to write a test about life in their neighborhood and what they have to go through every day, I'm sure that only 10-20% of us would pass their tests. You see how subjective testing is? All it does is reflect the cultural biases of the corporations who devise these tests.

But when an unholy alliance of politicians, bureaucrats, and corporations come together to profit off the backs of our children, these sorts of travesties of justice happen. The corporations walk away with their profits. The bureaucrats are simply doing their jobs and shutting themselves out from the rest of the world. The politicians say this "proves" that school accountability works. The children are the ones who suffer.

We all agree that schools can and should be held accountable for student performance. The state rightfully has shut down other charter schools that have had gross financial and management issues. But if the schools are on a sound financial footing and they are serving the needs of the students, then they should not be shut down. This sad episode shows that the only people who are properly qualified to determine whether the children are learning properly are the people who actually live and work with the children in question, not some far-off politician or bureaucrat in Jefferson City or Washington and certainly not some corporation in some cozy skyscraper in New York City.

And on top of the fact that hundreds of families are scrambling to find their next meal even more now that the school will no longer be able to feed these kids during the summer, there is the issue of what to do with a building that will now be vacant. In other words, the state is simply creating blight and an eyesore, seeing that there will be one more vacant building that is no longer being used, that will soon (10-15 years) develop leaky roofs and flooding that nobody can afford to fix.

There is a double standard at work here. A few years ago, the state decided to allow Premium Standard Farms, one of the largest CAFO's in the country, to keep operating despite the company having twice submitted to consent judgments in massive environmental lawsuits filed against the company. That is on top of the numerous nuisance lawsuits that the company has lost to neighbors who have to live next to the stink of these hog farms. The rationale was that they were too big to fail and provided thousands of jobs to a blighted region in north Missouri. Furthermore, if they were shut down, nobody knew who would foot the bill for the astronomical cleanup costs that would have followed.

But here, the state is ignoring the economic catastrophe that is sure to follow the closure of Gordon Parks. Hundreds of people will be without jobs; children will be without a place to eat during the summer, and the community will suffer given that schools are the lifeblood of the communities and neighborhoods that they are located in. When hopelessness sets in, that is when the drug dealers move in to sell drugs to our children. And then our politicians wonder why we are not making headway on the so-called "War on Drugs."

Recently, Pope Francis reminded us to be more mindful of the poor living in our midst. It was a powerful call that got a recommended diary at Daily Kos, not normally a friendly platform for the Pope or the Catholic Church. Unfortunately, by its practice of assigning values to human lives, the politicians and bureaucrats and the corporations have done the exact opposite.

The words of the Prophet Ezekiel are very much relevant to this situation. All it would have taken was one person to "stand in the gap" and take a stand against the moral turpitude that passes for "school accountability" these days. But apparently, nobody in Jefferson City or Washington or Corporate America cares about the kids of Gordon Parks or other such kids around the country.

Saturday, May 11, 2013

An underground fire is burning at a waste dump 1,200 feet away from
where 8,700 tons of nuclear waste is stored in Bridgeton, MO near St.
Louis; the EPA is cutting and running from the problem, Rolling Stone reports.
Our politicians would rather sweep this problem under the rug because
it does not fit in with their narrative of more jobs. But the landfill
in Bridgeton is burning and the problem is getting worse, no matter how
the politicians try to sweep it under the rug.

For the people in Bridgeton, MO, they have to live by it every day.
There is odor in the air that people can smell from miles away, which
some say is like rotten eggs and others say is like dead bodies
according to the Rolling Stone article. The most difficult job in the
country must be whoever is in charge of the Bridgeton Chamber of
Commerce trying to get people to come and visit their city. Good luck
with trying to put one's best foot forward.
The Rolling Stone article reports that as the EPA runs and hides from
the problem, people are organizing because they are concerned about the
long-term problems. Concerns raised are things like cancer risks as
well as property values. The property values are especially a concern;
after all, who would want to live in a place that smells like rotten
eggs or the stench of decay?
The company that owns the landfill, Republic Services, sent out
flyers to residents according to Rolling Stone assuring people that
there were no safety risks. But the DNR and DHSS and the Missouri
Attorney General see it otherwise and are now starting to get involved.

Reports from the Missouri Department of Health and Senior
Services (DHSS) indicate dangerously high levels of benzene and hydrogen
sulfide in the air. In March, Missouri's Department of Natural
Resources (MDNR) – which has jurisdiction over Bridgeton Landfill –
quietly posted an Internet notice cautioning citizens with chronic
respiratory diseases to limit time outdoors. A month after Republic
distributed its potentially misleading flier, the state attorney general
sued the company on eight counts of environmental violations, including
pollution and public nuisance. And this week, as part of a settlement
set to be announced Tuesday, Republic sent another round of fliers
offering to move local families to hotels during a period of increased
odor related to remediation efforts.

What Republic Services and the politicians don't want you to know is
that the landfull fire in question is burning close to 8,700 tons of
nuclear waste:

Nickel and Chapman are stay-at-home moms; Chapman has three
special-needs kids. Neither of them wants to spend her time worrying
about a damn landfill fire. But until someone higher up the power chain
intervenes, they have sworn to call municipal offices, file Sunshine
requests and post notices to the community's Facebook group, no matter
how unsettling the facts they uncover. Scariest of all: The Bridgeton
landfill fire is burning close to at least 8,700 tons of nuclear weapons
wastes.
"To have somebody call you at 11 P.M., and they're in tears,
concerned for their family, that's heartbreaking," Chapman tells Rolling
Stone. "We're doing this because we don't have a choice. If we don't
come together as a community and fight, no one's going to do it for us."

Specifically, the Bridgeton fire is 1,200 feet away from West Lake
Landfill, where the nuclear waste in question was dumped. Nobody knows
what would happen if the fire were to come in contact with the nuclear
waste. And nobody at the EPA cares.
And that is on top of the difficulty of Bridgeton residents in living normal lives. Attorney General Chris Koster:

"The nearby residents, schools, senior care facilities and a
local hospital all have dealt with terrible, ongoing odor problems from
the Bridgeton Landfill that have impacted their ability to go about
normal activities," Koster said.
"For St. Louisans who have not been directly exposed to the site, it
is difficult to describe the effects this situation is having on local
neighborhoods and businesses. While we have been assured by Republic
Services that they have developed a remediation plan and are
implementing that plan as expeditiously as possible, it is important
that we ensure the corporation’s promises are binding and enforceable in
a court of law," Koster added.
Koster said that, in addition to addressing the odor problems and
correcting the environmental violations, his lawsuit seeks to provide
remedies to help local residents and businesses deal with the ongoing
effects of the burning waste. The lawsuit also seeks to ensure that
Republic, rather than taxpayers, pays for the costs of experts hired by
the Department of Natural Resources (DNR) to perform ongoing, intensive
environmental testing. Koster noted that DNR has committed to share the
experts’ analysis and test results with the public as quickly as
possible.

A copy of the lawsuit is here.
The suit filed by the Missouri Attorney General's Office alleges
violations of the Missouri Solid Waste Management, Hazardous Waste
Management, Clean Water, Air Conservation, and Hazardous Waste
Management Laws as well as claims for nuisance, costs, and natural
resource damages.
According to the suit, on December 23, 2010, the defendants first
reported to the DNR that the Bridgeton Sanitary Landfill was
experiencing elevated temperatures on some methane gas extraction wells,
evidencing a "subsurface smoldering event." Since December 2010, the
event has intensified into a subsurface fire.
By July 2012, the state began receiving numerous complaints from
neighboring residences and businesses about the odor emitted by the
Bridgeton Landfill. Since that time, the suit alleges that the landfill
has continued to create odors that undermine the quality of life for
people working and living in the area.
In August 2012, the state began monitoring the air surrounding the
Bridgeton Landfill, which Koster says has emitted acetaldehyde and
benzene into the air in levels that exceed the EPA's regional screening
levels. Despite this, the EPA is sticking its head in the sand and doing
nothing about this. After all, government is the problem; therefore,
the mentality goes, if I get involved, the problem only gets worse.
By January 2013, black liquid leachate flowed out of the Bridgeton
Sanitary Landfill onto the surface of the ground, entered a forested
area, and an intermittent stream. In addition, it is now flowing into
the groundwater according to the suit. The state considers these streams
to be state property; therefore, they are very quick to act when
pollution of streams is involved.
The suit alleges that leachate violates the Toxicity Characteristic
Leaching Procedure under the Missouri Hazardous Waste Management Law.
Since January, the suit alleges that 150,000 gallons of liquid landfill
leachate per day is being generated.
The first count of the suit alleges a public nuisance, which involves
interference with the rights common to all members of the community in
general to live their own lives given that the fire is creating a
"highly offensive odor."
For the first count, the suit seeks a preliminary and permanent
injunction against the defendants from causing a nuisance and ordering
them to pay damages, issuing an injunction ordering the defendants to
take all appropriate steps to mitigate the impact of the nuisance on
residents, businesses, and patrons including assuring the safety of
workers, addressing the needs of those who have medical conditions, and
providing methods by which indoor air quality can be protected; issuing a
preliminary and permanent injunction ordering the defendants to develop
plans for abatment of the nuisance and submit those plans to the state.
The second count alleges burning solid waste in a sanitary landfill,
for which the suit seeks fines of up to $5,000 per day, among other
things.
The third count alleges odor pollution in violation of the Missouri
Air Conservation Act. For that, among other things, the suit seeks
penalties of up to $10,000 per day for each violation.
The fourth count alleges exceeding methane gas limits. The suit seeks
to require defendants to develop plans to reduce methane levels to
below regulatory limits and submit plans to the state for approval; in
addition, the suit seeks damages of up to $5,000 per day.
The fifth count alleges causing pollution of waters of the state. The
suit seeks to require defendants to develop a hazardous mitigation plan
and seeks damages of up to $10,000 per day.
The sixth count alleges improperly handling hazardous waste. From May
15th, 2012 to at least October 26th, 2012, the Metropolitan Sewer
District of St. Louis tested leachate from the landfill and determined
that it was contaminated with benzene. Sometime during December 2012,
the district ordered the defendants to cease discharging landfill
leachate into its wastewater treatment system. The suit also alleges
that the defendants began shipping untreated or undertreated leachate to
American Bottoms Regional Wastewater Treatment Facility in Sauget, IL
which the suit says tested positive for benzene on January 24, 2013. The
suit also alleges that the defendants, since at least December 2012,
violated the law by storing, containerizing, failing to label, and
transporting hazardous waste improperly.
The suit seeks to force the defendants to develop and manage the
leachate in accordance with Missouri law and seeks penalties of up to
$10,000 per day that the defendants are in violation.
The seventh count alleges storing solid waste in a manner that the
state says violates the law, creates a public nuisance, and adversely
affects public health. For this, the suit seeks to force the defendants
to develop a plan and seeks damages of up to $5,000 per day.
The eighth count seeks natural resource damages, cleanup costs, state
investigative and oversight costs, and legal expenses plus any other
relief that may be just and proper.

Friday, May 10, 2013

The Supreme Court is certainly not without humor these days. In a
dissent worthy of the best writings of the late Molly Ivins, Justice
Elena Kagan puts the corporatist Roberts Court to ridicule in her
dissent of Genesis Healthcare vs. Symczyk.
Ridiculing the Roberts Court for setting up a make-believe problem, she
claims in her dissent that they make errors that even a first-year law
student would avoid. The ruling was issued on April 16th of this year.

John Roberts seeks to leave his mark on the court. First and
foremost, he sees the American Corporation as the ultimate force for
good. This is based on his signature decision, Citizens United, as well
as his consistent pattern of ruling in favor of the corporation over the
individual in suits brought before the body. For instance, there have
been four recent cases since March 27th involving corporations versus
individuals and Roberts has sided with the corporation in all of them.
Roberts' view is similar to those of John Ashcroft and Donald Trump.
On his show The Apprentice, Donald Trump sometimes touts the number of
jobs that certain corporations have created in this country. And
Ashcroft, during his time as George Bush's attorney general, nearly
always sided with the corporation in court cases over individuals.
Roberts' second priority is preserving the Supreme Court as an
institution. This is evident in two things. His second signature
decision is the one upholding Obamacare. He is pragmatic enough to
realize that if the Supreme Court decisions sound too much like
propaganda pieces from the Republican Party, it will fatally undermine
the legitimacy of the court as an institution. The other pattern that we
see is efforts to break up the tribalism within the court. Many of the
rulings this term have not broken along the 5-4 lines that many
observers would expect. But when a corporation has a case before the
Supreme Court, Roberts welds the other four Republican-appointed
justices as a voting bloc in an effort to create government by the
corporation for the corporation.
This devotion to the cause of government by and for the corporation
has led detractors like Justice John Paul Stevens in Citizens United and
Kagan in Genesis HealthCare to accuse him of acting sua sponte, or
considering matters that were never argued by the parties.
In Genesis, respondent Symczyk brought a collective action under the
Fair Labor Standards Act of 1938 on behalf of herself and "other
employees similarly situated." Genesis subsequently offered a consent
judgment to her under the case; however, Symczyk, believing the offer an
attempt to pick her off, turned it down. The District Court ruled that
since no other individuals had joined her suit, that her suit was
therefore moot and dismissed it for lack of subject matter jurisdiction.
However, the Third Circuit reversed, saying that her individual claim
was moot but that her collective action was not, saying that Genesis'
attempt to pick her off went against the goal of collective actions.
In a 5-4 ruling, the Supreme Court held that because Symczyk had no
personal interest in representing "putative unnamed claimants nor any
other continuing interest," the suit was appropriately dismissed.
Genesis would deduct 30 minutes of time worked per shift for meal
breaks for certain employees even when the employees performed work
during those breaks. Symczyk sought damages for the alleged violations.
The offer, which she turned down, included $7,500 for unpaid wages as
well as attorney's fees, costs, and expenses as the Court may determine.
After Symczyk failed to respond to the offer, Genesis turned around and
claimed that because they had offered her complete relief on her
individual damages claim, she no longer possessed a personal stake. The
Roberts Bloc agreed. However, the danger in this ruling is that it will
undermine the Fair Labor Standards Act, the intent of which was to
compel wholesale changes to bring large corporations into compliance
with the act. Under this ruling, a corporation could offer to settle
with someone for the full amount under future actions brought under this
act and then turn around and continue the same practices that led to
the suit elsewhere.
But Justice Clarence Thomas, speaking for the majority, said that the
court was simply doing its job by restricting itself to actual
controversies in accordance with the Constitution.

This requirement ensures that the Federal Judiciary confines
itself to its constitutionally limited roleof adjudicating actual and
concrete disputes, the resolutions of which have direct consequences on
the parties involved.
A corollary to this case-or-controversy requirement is that “‘an
actual controversy must be extant at all stages of review, not merely at
the time the complaint is filed.’”

If an intervening circumstance deprives the plaintiff of a
“personal stake in the outcome of the lawsuit,” at any point during
litigation, the action can no longer proceed and must be dismissed as
moot.

Thomas then reasoned that since nobody else had joined the suit, the collective action clause did not save Symczyk:

In the absence of any claimant’s opting in, respondent’s
suit became moot when her individual claim became moot, because she
lacked any personal interest in representing others in this action.
While the FLSA authorizes an aggrieved employee to bring an action on
behalf of himself and “other employees similarly situated,” 29 U. S. C.
§216(b), the mere presence of collective-action allegations in the
complaint cannot save the suit from mootness once the individual claim
is satisfied.

Thomas then turned to similar cases decided in the past. The Supreme
Court has ruled in the past that since an independent class action has
been certified, the class action takes on a life of its own even if
Symczyk's case had become moot. And the court has ruled in the past that
if Symczyk's individual case had not been moot, then her case would
still be active even if the courts were to deny class action. But Thomas
argued that the Fair Labor Standards Act did not apply:

Under the FLSA, by contrast, “conditional certification”
does not produce a class with an independent legal status, or join
additional parties to the action. The sole consequence of conditional
certification is the sending of court-approved written notice to
employees, see Hoffmann-La Roche Inc., supra, at 171–172, who in turn
become parties to a collective action only by filing written con- sent
with the court, §216(b). So even if respondent were to secure a
conditional certification ruling on remand, nothing in that ruling would
preserve her suit from mootness.

Thomas said that settlement offers such as the one made by Genesis do not foreclose others from filing their own suits:

While settlement may have the collateral effect of
foreclosing unjoined claimants from having their rights vindicated in
respondent’s suit, such putative plaintiffs remain free to vindicate
their rights in their own suits. They are no less able to have their
claims settled or adjudicated following respondent’s suit than if her
suit had never been filed at all.

However, the unintended consequence of this ruling will be to clog the
courts with lawsuits. Collective suits under the Fair Labor Standards
Act as well as Class Action suits were specifically designed to avoid
the clogging of courts with many similar actions that set no valid legal
precedent.
But Justice Elena Kagan, speaking for the minority, opens with this broadside:

The Court today resolves an imaginary question, based on a mistake the courts below made about this case and others like it.

She accuses the majority of substituting political activism for determining the facts of the case at hand:

Embedded within that question is a crucial premise: that the
individual claim has become moot, as the lower courts held and the
majority assumes without deciding. But what if that premise is bogus?
What if the plaintiff’s individual claim here never became moot? And
what if, in addition, no similar claim for damages will ever become
moot? In that event, the majority’s decision—founded as it is on an
unfounded assumption—would have no real-world meaning or application.
The decision would turn out to be the most one-off of one-offs,
explaining only what (the majority thinks) should happen to a proposed
collective FLSA action when something that in fact never happens to an
individual FLSA claim is errantly thought to have done so. That is the
case here, for reasons I’ll describe.

Feel free to relegate the majority's decision to the
furthest reaches of your mind. The situation it addresses should never
again arise.

She then takes both lower courts to task:

That thrice-asserted view is wrong, wrong, and wrong again.
We made clear earlier this Term that “[a]s long as the parties have a
concrete interest, however small, in the outcome of the litigation, the
case is not moot.”

In other words, implying that Roberts is breaking his own precedent,
contrary to what he promised the Senate during his confirmation
hearings.
Kagan then takes the court to task for what she says are mistakes that even a first-year law student would avoid:

By those measures, an unaccepted offer of judgment cannot
moot a case. When a plaintiff rejects such an offer—however good the
terms—her interest in the lawsuit remains just what it was before. And
so too does the court’s ability to grant her relief. An unaccepted
settlement offer—like any unaccepted contract offer—is a legal nullity,
with no operative effect. As every first-year law student learns, the
recipient’s rejection of an offer “leaves the matter as if no offer had
ever been made.”

She reasoned that since Symczyk's suit was not negated by the settlement offer, she still had a personal interest in the case:

Symczyk’s claim was not moot, and the District Court could
not send her away empty-handed. So a friendly suggestion to the Third
Circuit: Rethink your mootness-by-unaccepted-offer theory. And a note to
all other courts of appeals: Don’t try this at home.

The consequences, she says, involve plunging into a world of make-believe:

Still, you might think, the majority’s approach has at least
this benefit: In a future FLSA case, when an individual claim for
damages in fact becomes moot, a court will know what to do with the
collective allegations. But no, even that much cannot be said for the
majority’s opinion. That is because the individual claims in such cases
will never become moot, and a court will therefore never need to reach
the issue the majority resolves. The majority’s decision is fit for
nothing: Aside from getting this case wrong, it serves only to address a
make-believe problem.

Thursday, May 9, 2013

Today's Des Monies Register has a front page headline in its print
edition -- 656 wind turbines are coming to Iowa that will bring a $1.9
billion windfall to the state. The front page has a quote from Nathaniel
Baer of the Iowa Environmental Council:
"I think it is a welcome development for wind energy, the Iowa
environment, and the economy." With the feds stuck in sequestration
mode, state and private authorities are stepping up and providing an
economic windfall to Iowa.

The company in question, Mid American, is a utility company serving 714,000 customers in the Midwest. They have invested heavily in wind power in Iowa since 2004:

MidAmerican Energy began installing wind turbines in 2004
and is a recognized leader in the use and development of renewable
energy. No other U.S. rate-regulated utility owns more wind-powered
generation capacity.
In December 2010, MidAmerican Energy announced it would add 593.4
megawatts of new wind-powered generation in Iowa. The projects included
the 443.9-megawatt Rolling Hills wind project, located in Adair, Adams
and Cass counties; the 119.6-megawatt Laurel wind project, located in
Marshall County; and the 29.9-megawatt Pomeroy wind expansion project,
located in Pocahontas and Calhoun counties. The final portion of the
593.4-megawatt expansion project was placed in-service by year-end 2011.
In 2012, MidAmerican Energy solidified its No. 1 ranking when it completed a 407-megawatt wind expansion project in Iowa.

State and utility leaders say that their latest move will hold down
utility bills and create new jobs in the state at a time when the
country and state needs them most. This debunks the claim made by some
that more wind will lead to higher utility bills for customers.
The American Wind Energy Association,
in figures quoted by the Register, notes that Iowa has 5137 megawatts
of wind power, third in the nation. Iowa has 25% of its power generated
by wind, first in the nation. And there are 6,000 to 7,000 jobs created
by wind, primarily at wind manufacturing plants. Wind power has
bipartisan support in Iowa, a rarity in politics these days; Iowa
Governor Terry Brandstad, an institution in Iowa, says that is the
largest investment ever in the state.
MidAmerican, in figures quoted by the Register, said that the project
would create 460 construction jobs, 48 permanent jobs (a big boost for
the small communities where they are located), lower power rates in
order to attract more companies to the state, greener power, $3.2
million in annual lease payments to farmers, and $360 million in
additional property taxes to the 14 counties which will benefit.
MidAmerican was able to do the project at no additional cost to
customers thanks to the Wind Energy Tax Credit. According to a sideline
article, this issue helped propel Obama to victory in the state of Iowa,
despite the Register endorsing Mitt Romney. Romney had opposed the
extension of the credit.
Not only is Iowa's wind-friendly policy leading directly to the
creation of thousands of jobs, it is indirectly leading to the creation
of many more. The Register article notes that Facebook is building a
$300 million data center in Altoona thanks to the state's green power
and is also looking into building its own wind farm. Facebook has
pledged itself to getting to 25% wind power. The $300 million that
Facebook is investing, as the Register notes, is just the first phase.
The National Renewable Energy Labratory
provided statistics to the Register that show that Iowa is the 7th
windiest state in the union and has the capability to add on 44 times
the amount of wind power that it currently uses. In other words, Iowa
has the capability of getting to the point where it can derive all of
its power from wind. Another issue commonly brought up is bird kills.
However, Iowa has solved the problem of bird kills by building its
turbines in a ridge formation instead of a grid formation. The Register
quotes the Iowa DNR as saying that birds are much less likely to be
killed by wind turbines than by windows or power lines.